Wednesday, February 4, 2015

Circuit Judge Diane S. Goodstein's carefully crafted 46-page decision in the case brought by Bishop Mark Lawrence's Episcopal Diocese of South Carolina (along with 35 of its parishes, plus St. Andrew's, Mt. Pleasant) against the Episcopal Church (USA) and its rump group (ECSC, or "Episcopal Church in South Carolina") is a complete vindication of the positions taken and arguments advanced for so long, by so many, inside and outside the Church.

It is a vindication first, for the Right Reverend Mark Lawrence and his legal team, who conceived the winning strategy, assembled and put on all the evidence, wrote all the briefs, argued all the appeals, fought back in the federal courts, and at last brought ECUSA to its day of reckoning.

It is a vindication, as well, of Bishop Lawrence's pastoral strategies, by which he showed how spiritual leaders can follow and submit themselves to the civil law, while in doing so remain faithful and Biblical counselors and guides for those in their spiritual care. It was Bishop Lawrence who decided on behalf of his Diocese not to appeal the All Saints Waccamaw decision to the U.S. Supreme Court and run the risk of dividing his parishes still further. It was Bishop Lawrence who accepted responsibility for giving each parish in his Diocese a quitclaim deed in compliance with the holding in All Saints Waccamaw that the Dennis Canon could on its own not create a trust in any property in South Carolina. These decisions led to the accusations of "abandonment" brought against Bishop Lawrence by his detractors, but they were pastorally the right decisions to make under the circumstances. Had ECUSA's leaders shown a comparable willingness to submit to the everyday requirements of the civil law, the Church would not be where it is today: millions and millions of dollars poorer, with absolutely nothing to show from the squandering of all its trust funds.

It is a vindication of all of the faithful parishioners and clergy in the Episcopal Diocese of South Carolina who remained by their Bishop, and provided much-needed financial support, as ECUSA and its minions sought to bring him down by the sheer weight of all the forces they could bring to bear against him and his Diocese.

It is a vindication for this country's honest and hard-working judiciary. Judge Goodstein has set a sterling example (in contrast to that set in the parallel San Joaquin case by Judge Donald Black, of the Fresno Superior Court) of how to write a thoroughly reasoned, well-organized opinion that deals with the historical facts and expert testimony in a manner that is true to what that evidence showed. (Judge Black brushed off the questions put to him in the link above, and never deigned to answer them.) Judge Goodstein not only answered each and every one of them (but with reference to the Diocese of South Carolina, not San Joaquin), but she did so in spades, and constructed an opinion so solidly grounded in the testimony, evidence and applicable South Carolina law that it should stand up intact on any appeal.

It is a vindication of Mark McCall, the Rev. Dr. Ephraim Radner, the Very Rev. Dr. Philip Turner, and the Rev. Dr. Christopher Seitz, all of the Anglican Communion Institute, which has for so long fully documented and advocated the positions adopted by Judge Goodstein in her opinion. (To be accurate, the Institute has never advocated that any Diocese should withdraw from ECUSA, and has instead argued that they should fight the good fight from within the Church.)

And lastly, while the decision cannot be viewed as a vindication for Episcopalians such as myself and others who disagree strongly with the legal strategies of ECUSA's current bishops and attorneys -- because it does nothing to rectify what is wrong with ECUSA today -- it is at the very least a justification for our continuing to sound the alarm over those ill-conceived strategies, which contradict, undermine and betray the very foundations of this Church (see, e.g., factual findings 1 through 7 on page 6 of Judge Goldstein's decision).

One of the key factual findings by the Court is this:

39. Mark Lawrence was not elected Bishop of the Diocese with the intent on either his part or on that of the Diocese to lead the Diocese out of TEC. From 2009 until October 2012, his intent was to remain "intact and in TEC."

Based on this finding alone, Judge Goodstein dismissed "with prejudice" (meaning that they cannot be raised again, in any forum) ECUSA's and ECSC's counterclaims against Bishop Lawrence. Those had accused him of "conspiring" to lead his Diocese out of ECUSA, of fraud and breaches of fiduciary duty, etc., and generally of conduct unbecoming a member of the clergy -- claims that his accusers had to bring twice before the Disciplinary Board before the Presiding Bishop could get what she wanted (once she changed its membership slightly).

Needless to say, Judge Goodstein made such a finding because ECUSA and ECSC never had any evidence to substantiate their charges. (Note to hostile readers, such as those from the Episcopal Forum in South Carolina, or the followers of Steve Skardon: "evidence" in a court of law is something far more than just accusations and innuendo. What you can say on your blogs is not "evidence." Until you learn this difference, you have no basis upon which to claim victory in any court.)

On the legal side, the decision is chock full of useful conclusions that can be cited and used in the Fort Worth case, and in the ongoing appeal in the San Joaquin case. For example, this is one of the best judicial discussions to date of the First Amendment rights of a diocese-member of an unincorporated church such as ECUSA:

Freedom of association is a fundamental constitutional right: "it is beyond debate that freedom to engage in associations for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment .... " NAACP v. Alabama, 351 U.S. 449, 460 (1958). "[I]t is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, any state
action which may have the affect of curtailing the freedom to associate is subject to the closest scrutiny." Id. Freedom of association is a constitutional right of both incorporated and unincorporated associations. Id.

With the freedom to associate goes its corollary, the freedom to disassociate. Robert v. United States Jaycees, 468 U.S. 609, 623 (1984) ("Freedom of association ... plainly presupposes a freedom not to associate."); Disabato v. South Carolina Association of School Administrators, 404 S.C. 433, 445, 746 S.E.2d 329, 335 (2013) ("Among the protections afforded by the freedom of association are the rights to not associate .... "); accord Harris v. Quinn, 134 S. Ct. 2618, 2629
(2014) (citations omitted) (A law is not justified "that forces men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought" or that "forces a person to "conform to [an entity's] ideology."

As has long been argued on this blog, any restriction which ECUSA tried to put upon the ability of its member dioceses to withdraw would be in violation of the First Amendment, and unenforceable in any civil court in the land.

Another key finding (again, as long argued here, and as found by the highest courts in Illinois and Texas as well):

76. TEC does not have an ultimate judicatory.

Seven simple words -- but they mean that the "deference to its ecclesiastical determinations" approach urged for so long by ECUSA is ill-founded. There is no church judicatory to whose decisions a court might defer -- ECUSA has never created one. (Perhaps because its dioceses like their autonomy? -- perish the thought.)

And still another finding, that is fraught with consequences for the Episcopal Diocese of Upper South Carolina, in its relation to its own member parishes:

64. Where applicable, the Plaintiff parish churches amended their corporate governance documents to remove references to TEC; such amendments complied with the notice quorum and voting requirements of the Act and the requirements of their corporate governing documents.

Under South Carolina law, which holds that the Dennis Canon is ineffective to create any enforceable trust, any parish in the State may so amend its governing documents at any time, and so disaffiliate from a diocese to which it belongs. In other words, parishes have First Amendment rights of association, too.

Think of each of these well-crafted findings and conclusions as individual nails in ECUSA's coffin that will keep any appellate court from wanting to open it. Sloppy decisions make for an appellate court's breakfast, but finely wrought ones such as this are framed and put over the mantel.

That said, look for ECUSA to continue to deploy its delaying tactics to the maximum in the South Carolina courts. First it will file a motion with Judge Goodstein asking her to "reconsider" her carefully considered decision. When she enters an order denying that, ECUSA could try motions for a new trial and/or to vacate the findings made, as well as for a stay of her injunction pending appeal. Only when all of their post-trial options are exhausted will ECUSA and ECSC then file a notice of appeal to the South Carolina Court of Appeals.

At that point, however, the schedule could be taken out of ECUSA's hands. As they did with their opponents' earlier attempts to tie things up in the Court of Appeals, Bishop Lawrence and his attorneys could file a pre-emptive motion with the South Carolina Supreme Court, asking that Court to take the appeal and decide it directly without waiting for any decision from the Court of Appeals.

Once the case reaches the South Carolina Supreme Court, look for a decision from that body which roundly affirms Judge Goodstein's opinion in all respects. Then ECUSA may try to get the United States Supreme Court interested in reviewing the decision -- although by that time ECUSA should have a new Presiding Bishop who hopefully will see further litigation as the waste of trust funds that it is. Even so, based on its track record with such requests to date (there have been half a dozen so far, each denied), the Supreme Court will in all likelihood refuse to grant any petition for review.

Bishop Lawrence will have his post-judgment remedies, as well: under the statute cited by Judge Goodstein at the top of page 38 of her decision, and given the extensive findings she makes at pages 39 to 44 of her decision (especially in the last paragraph, before the "It Is Therefore Ordered" section), he will be entitled to an award of his reasonable attorneys' fees in the lawsuit. Watch for his motion for fees to be filed in the coming weeks: because of ECUSA's countless delaying tactics which multiplied the time required to be spent, it will ask for many, many hundreds of thousands of dollars (and I would not be at all surprised if the total came to over a million -- or two).

So with this decision, the end is in sight -- not close yet, but at least in sight. But what about the case argued last week before the federal Fourth Circuit Court of Appeals, in Richmond? Could that case still go forward?

I listened to the recording of the oral arguments in that case (mp3 file available for download using this link). Based on the questions asked of both sides, I think the Court of Appeals will most likely return the case to Senior District Judge Houck and direct him to use a different technical standard in deciding whether or not to abstain from exercising jurisdiction over the case (which was brought by Bishop vonRosenberg to address charges of federal trademark infringement by Bishop Lawrence and his Diocese).

Judge Houck will have the benefit (which the Court of Appeals may not) of reading Judge Goodstein's well-written opinion -- which decides the trademark issues under State law. Moreover, the injunction against Bishop vonRosenberg claiming to be the "Bishop of the Diocese of South Carolina" is now made final against him, and he cannot disobey it while the case is on appeal without getting the injunction first stayed (see Rule 62 [c], which you may read here). So he can no longer argue to the federal courts that he has the rights to that title unless he can get a South Carolina Appeals Court justice to stay the injunction, and I personally doubt he will be able to do so.

If this analysis correct, the federal case is dead unless and until ECUSA and ECSC manage to get a court to reverse Judge Goodstein's decision. And this Curmudgeon, at this point, just does not see how that could ever happen.

ECUSA will not have to pay costs to its opponents, alas, until the appeal(s) have come to a conclusion. But when that happens, the cost bill should be substantial -- think of all those individual rectors and vestry members whom ECUSA/ECSC felt they just had to name as defendants on their counterclaims.

With the costs and attorneys' fees certain to be awarded, then, ECUSA's South Carolina strategy has suddenly become very much more expensive. The totals it will have to pay will make mincemeat of this year's legal budget, and will require that the full Executive Council adjust that line item.

It would be an excellent time for the Council to request a full justification for her strategy from the Presiding Bishop -- and maybe General Convention 2015 will be moved to do so, as well.

Strategies have consequences, and poor strategies have even greater consequences. ECUSA, 815, its General Convention and Executive Council -- but first and foremost, ECUSA's Treasurer, who will have to find the money somewhere, in one of ECUSA's long-ago trust funds donated for its mission --will soon enough learn what those are.

Mr. Haley, thank you for breaking it all down for us over the years. Thank you, also, for allowing your joy to show through every now and then. In a constant apprehensive state about things so deep, it's like a crowd gathered, waiting, watching and wondering if it's okay to give a cheer, or let out an occasional, "Hooray! Thanks be to God!" It's like watching a boxing match and the good guy knocks the bully for a loop and the bully is teetering on wobbly legs. There is a referee who can stop the fight and further injury. Her initials are KJS. Let's hope she will have mercy upon the battered combatant and throw in the towel. Alas, sadly she may have the spirit of those pit bull owners we so often find behind bars, doing time. Those owners often keep shoving an injured animal back into the altercation out of bloodlust and even when the poor thing is to the point of imminent death.

Sir, thank you once again for your explanation and analysis (and greetings from St. John's, Johns Island, by the way!).

I read through the entire judgement yesterday and it struck me how utterly one-sided Judge Goodstein's summarizing comments were. I don't remember a single argument by the defense being praised in any way, or dismissed with more than a cursory glance. The decision therefore reads – to this layperson – as not only a defeat for the TEC argument, but as a rather embarrassing exposure of the weakness of their case. Alan Runyan should receive due acknowledgement for his work demonstrating this weakness.

It was also intriguing and refreshing to me what a clear grasp of history Judge Goodstein apparently has; not only in terms of what decisions were taken in the 17th or 18th centuries, but also the motivations behind those decisions. Being part of a parish that predates TEC, this understanding and respect for forebears was striking to me.

Final thought: I have heard and seen a sad triumphalism, if veiled, in a few fellow DioSC friends. I think we need to avoid this ungodly reaction at all costs, while still being glad and thankful for the decision that has been reached. When we stand before God and He asks us if we have loved our enemies and genuinely prayed for those who have persecuted us, I want to have a clear conscience. Let's continue to pray for those in TEC, in SC and beyond, that God would redeem that Church and lead them back into truth – that is, into Himself.

David, thank you for that thoughtful comment. I join you in praying that those in the Episcopal Diocese will not succumb to triumphalism, but will ever be mindful of St. Paul's warnings to Christians who let their disputes go to the secular courts.

ordinary, the only part of the judgment which ECUSA might like to have stayed is the permanent injunction against their using similar names -- and yes, to get any such stay they would have to post a bond. The greater problem for them, however, would be to show a probability of success on appeal that could justify such a stay, because otherwise there is no good to be gained from letting them maintain the confusion they have caused already. So I do not see any likelihood that they will get a stay.

The rest of the judgment is simply declaratory in nature. They have not been ordered to turn over any property or money -- so no need to bond anything.

The confidence you show in your writing is very comforting, Alan. Knowing that an appeal will be made it's even more comforting that the burden to be carried is now squarely on TEc/EcSC.

With my engineering cap back on, and thinking (as has been my education and training) of possible failure modes, is there any part of the ruling which could be subject to reversing? However strong the ruling is, could we expect that the appeal court will be just as grounded as Judge Goodstein made clear she is; or if not, could we expect that panel to educate itself thoroughly using the ruling (or other means) and still arrive at her conclusions? In other words, is there anything in her decision which could be worthy of concern?

If there is anything in the decision which is "worthy of concern," I just don't see it. She has a very authoritative precedent in the All Saints Waccamaw decision, and she followed that case and applied it to the facts just as she should have.

And most likely, it will not be the Court of Appeals which reviews her decision, but the Supreme Court itself -- namely, the authors of All Saints Waccamaw, which was a unanimous decision by that Court. So I see little chance that the Supreme Court would find any ground on which to reverse her.

I notice the story is being run in ChristianityToday magazine. Unlike the journalists of the magazine, however, I feel that I have had the "inside scoop" into this case over the years thanks to your thorough, sobre, and eminently sensible explanations of the facts. Thank you, sir, for the time you have given to communicate these complex legal matters to us in a manner that is easily understandable by the layperson.

At this stage, I confess to being somewhat intrigued by the size of the costs that will be potentially awarded to South Carolina. Whilst it is recognised - even by the liberal elements of the church - that the Presiding Bishop's tenure has been an unmitigated horror, her final legacy might be the movement of TEC substantially closer to the brink of financial distress (if not ruin).

It is surely a testimony to the vainglorious character of this individual that despite leaving the TEC self-evidently worse by many orders of magnitude, she has defended her record in the best traditions of dishonest politicians imagining that somehow she had been the gritty, determined captain guiding the church through troubled waters and into a happy future. Frankly, the waste, the clever silliness, the absurd use of the word "shalom", the disdain for scripture, the outlandish costumes, and the quiet administrative brutality will not be missed at all. There is something in this triumph for South Carolina that poetically places the capstone on her time in office, and signals, perhaps, a revitalisation of the TEC.

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